Social Media Issues in Divorce Litigation – The New Frontier

It is no longer a secret that attorneys that work in the domestic relations arena are mining social media networking sites, such as Facebook, for helpful evidence about the opposing party.  A person’s Facebook page is often a very fertile source of embarrassing information that may help sway a judge’s opinion about which parent is best to be the primary caregiver for the children at issue.  That is why it is extremely important for those engaged in a custody battle to be cognizant of what information about themselves (and their children) that they are choosing to share with the world on social media networking sites.

The old adage that “a picture is worth a thousand words” is very often true, especially when the picture is speaking to the lifestyle habits of a parent.  Anyone can dress nicely and appear respectful when testifying in court, but it’s what they do when they are unaware someone is looking that is the true test of their character.  Judges know this and it often impacts their decisions.  Pictures of people smoking marijuana or drinking in excess are becoming some of the most popular forms of evidence to disparage a particular parent’s capacity to raise his or her children, and it can be the difference between winning and losing when both parents otherwise appear to be safe and secure placements.

Removing Sensitive Information On Social Media

For this reason, over the last few years divorce attorneys have urged their clients to be careful when it comes to posting information on a social media networking site.  Not only will your soon-to-be ex-spouse likely be checking the site, but you can bet his or her attorney will as well. Clients will often heed the advice and immediately remove or delete information they would not want to see the light of day, as well as restricting who has access to the content they choose to post.

Requesting Social Media Content In The Divorce Context

However, merely removing or restricting access to posted content may not be enough anymore. Attorneys are increasingly taking additional measures to obtain even private information on social media networking sites, such as issuing subpoenas directly to site administrators demanding password-protected information.  In addition, we have recently seen a discovery demand requesting that a client provide the opposing attorney her Facebook password!  Yes, that’s right, the opposing attorney wanted the ability to login to the client’s Facebook account and peruse the entire site without restriction.

Obviously, this situation raises serious privacy concerns. But, is the law equipped to address this situation?  The answer to that question is, “not at this time,” and it is something that courts are going to have to sort through over the next several years.  A quick search of a leading online legal research database shows not a single Ohio appellate court has addressed the issue of requesting unfettered access to a social media networking site in the divorce context.  That will surely change in the near future.

Does Ohio Law Protect Social Media Content?

Ohio law governing the discovery process – the process by which parties exchange information in preparation for trial – allows litigants to obtain information “regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.”  Clearly, a parent’s social lifestyle is relevant to the issue of custody.  Moreover, it is extremely unlikely that the content contained on the social media networking site would fall within a recognized privilege.  So, at first glance it appears that a request for a party’s social media password is fair game.

Prohibiting Social Media Access Under Ohio Law

However, there is one potential mechanism under the Ohio law that may be useful in defeating such a request.   Ohio Rule of Civil Procedure 26(C) allows a party to seek a protective order from the court to “protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”   If it deems it necessary, the Court may order any of the following:

1. that the discovery not be had;
2. that the discovery may be had only on specified terms and conditions, including a designation of the time or place;
3. that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;
4. that certain matters not be inquired into or that the scope of the discovery be limited to certain matters;
5. that discovery be conducted with no one present except persons designated by the court;
6. that a deposition after being sealed be opened only by order of the court;
7. that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;
8. that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court.

The Party whose social media password is sought will be required to petition the court for an order prohibiting the opposing party from simply logging-in and searching the entire site, including its history.  It will be the responding party’s burden to show that the discovery request is unreasonable.  Will courts agree that the request for a social media password is too much of an invasion of privacy?  Only time will tell.  Given the fairly liberal definition of what is considered “discoverable” under current law, it is quite possible that courts will approve of the practice.  Therefore, it is even more important to remember that anything you post on a social media networking site can come back to haunt you.  There is simply no guarantee at this time that your ex-spouse will be shielded from the information.

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